Unprecedented Insurrection: The Events of January 6

The attack on the Capitol. January 6, 2021. (NA)

Today is the third anniversary of the January 6, 2021 attack on the Capitol, intended to keep Donald Trump in power after he lost the 2020 election. One of the points at issue in the Supreme Court case considering whether Trump should be disqualified under Section 3 of the Fourteenth Amendment is whether the events of that day qualify as an “insurrection.” It should be an easy call. The January 6 attack was an insurrection under any plausible definition of that term.

As legal scholar Mark Graber shows, contemporary definitions of “insurrection” prevalent at the time the Fourteenth Amendment was enacted were quite broad: possibly broad enough to encompass any violent resistance to the enforcement of a federal statute, when that resistance was motivated by a “public purpose.” That surely includes the January 6 attack!

I’m not convinced courts should actually adopt such a broad definition. It could set a dangerous precedent. As Graber notes, on that theory people who violently resisted enforcement of the Fugitive Slave Act qualify as insurrectionists, too. But January 6 was an insurrection even under a narrow definition that covers only violent attempts to illegally seize control of the powers of government. After all, the attackers were using force to try to keep the loser of the 2020 election in power, blocking its transfer to the rightful winner. If that isn’t a violent attempt to seize government power, it’s hard to know what is.

It’s true many of those who participated thought they were acting to support the rightful winner of the election, and thus believed they weren’t doing anything illegal. But much the same could be said of the ex-Confederates who were the original target of Section 3. Most of them believed their states had a constitutional right to secede, and they had much…